In April, 2013, the Oregon Court of Appeals denied my request to have my lawsuit, Daniel C. Re v. PERS decided by judges who are not PERS members. The Court held that the rule of necessity applied to this case and that the elected judges of the Court of Appeals, all of whom were PERS members and whose own retirement benefits depended on the outcome of the case, had to decide the case. The Court of Appeals made this ruling by deferring to prior Oregon Supreme Court decisions, even though the laws that applied to the Supreme Court were different that the laws that applied to the Court of Appeals.
Under the rule of necessity, judges with a conflict of interest must decide a case despite having a conflict of interest that would disqualify them, if it is impossible to appoint judges to decide the case who do not have a conflict of interest. In this case, there is a specific statute, ORS 2.570(3), that allows the Oregon Supreme Court to appoint temporary judges to the Court of Appeals, if all of the elected Court of Appeals are disqualified to decide the case. Since all of the elected Court of Appeals judges are PERS members, they all have a disqualifying conflict of interest. The Court recognized this fact in its opinion but failed to apply ORS 2.570(3).
It appears to me that the Court of Appeals felt that since the Oregon Supreme Court had first ruled that the rule of necessity applied in PERS cases, only the Supreme Court could review that issue. Therefore, I will ask Oregon Supreme Court to review the Court of Appeals decision. The Supreme Court, however, is not required to grant this request.
If the Supreme Court grants the request it will give the Court, for the first time, the opportunity to review the applicability of the rule of necessity to PERS cases. And, hopefully, it will result in a detailed explanation from the Supreme Court as to why or why not the rule of necessity applies to the Court of Appeals when PERS cases are decided.
If, however, the Court denies my request, it will mean that the Supreme Court will not provide an explanation as to why the rule of necessity applies to PERS cases in the Court of Appeals. In that case, I will examine all other options available to me to have this issue determined by judges who are not PERS members and whose own retirement benefits do not depend on the outcome of the case.